Gwen Stribling Henderson, Raven A. Pitre and Christine S. Willie v. John Richard Shanks and Carbett Joseph Duhon, III

Affirmed in Part, Reversed and Remanded in Part, and Opinion filed October
30, 2014.
In The
Fourteenth Court of Appeals
NO. 14-12-01026-CV
GWEN STRIBLING HENDERSON, RAVEN A. PITRE, AND CHRISTINE
S. WILLIE, Appellants
V.
JOHN RICHARD SHANKS AND CARBETT J. DUHON, III, Appellees
On Appeal from the Probate Court No. 1
Harris County, Texas
Trial Court Cause No. 401,492-401
OPINION
This appeal arises from an ancillary case relating to a core probate matter
involving a will contest. Three plaintiffs — a relative of the testatrix, a beneficiary
under the first two wills in dispute, and the attorney who drafted these two wills —
filed suit asserting tort claims against two defendants — the testatrix’s husband
and the attorney who drafted a third will. The husband moved the trial court to
strike the plaintiffs’ petition and to grant a no-evidence and traditional summary
judgment dismissing the claims against him. On the same day, the trial court
signed two orders, one striking the plaintiffs’ petition and one granting the
summary-judgment motion. We construe the two orders as a single, final
judgment in which the trial court struck the petition as to both defendants and, in
the alternative, granted summary judgment in favor of the husband. Concluding
that the trial court erred in granting the motion to strike but did not err in granting a
traditional summary judgment, we affirm the trial court’s summary judgment as to
the husband, reverse the trial court’s striking of the petition, and remand to the trial
court for further proceedings regarding the plaintiffs’ claims against the attorney.
I. FACTUAL AND PROCEDURAL BACKGROUND
Dr. Cecelia Gibbons was diagnosed with brain cancer. She realized that she
might have only a few months to live. Gibbons decided that she wanted to update
her estate planning and execute a new will. Therefore, on the day of her diagnosis,
May 13, 2010, Gibbons contacted her friend, appellant/plaintiff Christine Willie,
an estate-planning attorney, and talked to her about estate planning. Willie
prepared a will, and the next day Gibbons executed it (hereinafter the “May Will”).
Two days after executing this will, Gibbons married appellee/defendant John
Richard Shanks, with whom she had been romantically involved since 2001. 1 Four
days later, Gibbons had surgery to remove a brain tumor.
Two weeks later, on June 3, 2010, Gibbons executed another will that had
been prepared by Willie (hereinafter the “June Will”). Shortly thereafter, Willie
sent Gibbons an email explaining the gifts under the June Will and the beneficiary
designations on Gibbons’s life-insurance policies. Gibbons realized that Willie
1
This sentence is based upon uncontroverted statements contained in Shanks’s summary-
judgment affidavit.
2
was going to receive $300,000 as a beneficiary under one of Gibbons’s life-
insurance policies and $185,000 as a beneficiary under another of Gibbons’s life-
insurance policies. Gibbons was furious. Gibbons told Shanks several times that
Gibbons never meant to give Willie that much money. Gibbons felt betrayed, and
said that Willie had taken advantage of her. 2
Gibbons and Shanks went to Willie’s office on June 21, 2010, to pick up
Gibbons’s file. Shanks contacted appellee/defendant Carbett J. Duhon, III, and
within a few days Gibbons met with Duhon. Two months later, on August 26,
2010, Gibbons executed a third will that had been prepared by Duhon (hereinafter
the “August Will”).
Gibbons passed away on December 9, 2010. Six days later, Willie filed an
application to probate the June Will, in which Gibbons named Willie as the
independent executrix of her estate. This application was assigned cause number
401,492 in Harris County Probate Court Number One (the “Core Case”). Two
weeks later, Shanks filed an application in the same case to probate the August
Will, in which Gibbons named Shanks as the independent executor of her estate.
Six months later, Willie amended her application so that she sought to probate the
May Will rather than the June Will. Willie alleged that Gibbons lacked
testamentary capacity after May 20, 2010, and therefore lacked testamentary
capacity when she executed the June Will and the August Will.
The probate court signed a docket control order in July 2011, setting
December 16, 2011 as the deadline for amending or supplementing pleadings (the
“Pleadings Deadline”). Shanks timely amended his application, adding a number
of new parties on whom citation would be served but from whom Shanks did not
2
The last five sentences of this paragraph are based upon uncontroverted statements contained in
Shanks’s summary-judgment affidavit.
3
seek any affirmative relief. Among these parties was appellant/plaintiff Raven
Pitre, Gibbons’s daughter, and appellant/plaintiff Gwen Stribling Henderson, a
beneficiary under the May Will and the June Will but not under the August Will.
Before the Pleadings Deadline, Pitre and Henderson each filed an opposition to the
probate of the August Will, alleging lack of testamentary capacity and undue
influence by Shanks.
Six days after the Pleadings Deadline in the Core Case, Willie, Pitre, and
Henderson (hereinafter collectively the “Plaintiffs”) filed an original petition in
cause number 401,492-401 in Harris County Probate Court Number One (the
“Ancillary Case”). In this pleading, the Plaintiffs sought actual and exemplary
damages against Shanks and Duhon based on tort claims for breach of fiduciary
duty and tortious interference with inheritance rights.
Shanks and Duhon answered in the Ancillary Case. Three weeks after
answering, Shanks filed a motion to strike the Plaintiffs’ Original Petition in the
Ancillary Case, and, on the same day, Shanks moved for a traditional and a no-
evidence summary judgment. The Plaintiffs opposed these motions and also
objected to Shanks’s motion for a no-evidence summary judgment and requested a
continuance because the Plaintiffs alleged that there had not yet been an adequate
time for discovery.
The probate court signed an order in which it granted Shanks’s summary-
judgment motion and dismissed with prejudice the Plaintiffs’ claims against
Shanks. On the same day, the probate court signed another order in which it
granted Shanks’s motion to strike the Plaintiffs’ Original Petition with prejudice.
II. ISSUES AND ANALYSIS
On appeal the Plaintiffs assert in four issues: (1) that leave of court is not
4
required to file ancillary claims in Harris County probate courts and that the trial
court erred in striking the Plaintiffs’ pleadings, (2) that Shanks’s no-evidence
motion for summary judgment was totally premature, (3) that genuine issues of
material fact precluded rendition of a traditional summary judgment in favor of
Shanks, and (4) that there are no pleadings to support the striking of the Plaintiffs’
pleadings with prejudice as to Duhon. In response, Shanks asserts a number of
arguments in support of the proposition that this court lacks jurisdiction over this
appeal. 3
Before addressing the merits of this appeal, we first resolve the threshold
issues of determining what judgment the trial court rendered and whether this court
has jurisdiction over the Plaintiffs’ appeal from that judgment.
A. What judgment did the trial court render?
The trial court signed two separate orders on the same day that were filed in
the trial court’s file at the same time. In one order, the trial court granted Shanks’s
summary-judgment motion and dismissed with prejudice the Plaintiffs’ claims
against Shanks. In the other order, the trial court granted Shanks’s motion to strike
and then struck the Plaintiffs’ Original Petition with prejudice. We conclude that
these orders should be construed together as a single, final judgment, in which the
trial court both granted the motion to strike the Original Petition in its entirety and
also, in the alternative, granted Shanks’s summary-judgment motion and dismissed
with prejudice the Plaintiffs’ claims against Shanks.4 See Tex. R. Civ. P. 301
3
Duhon has not filed an appellate brief. No party has asserted that the trial court lacked probate
jurisdiction. We conclude that the trial court had probate jurisdiction over the Ancillary Case
under former Probate Code section 5 or section 5A. See Act of May 28, 2003, 78th Leg., R.S.,
ch. 1060, §§ 1–4, 2003 Tex. Gen. Laws 3052, 3052–54, repealed effective January 1, 2014 by
Act of May 26, 2009, 81st Leg., R.S., ch. 680, 2009 Tex. Gen. Laws 1512, 1512–1732.
4
Shanks argues that this court lacks appellate jurisdiction because the trial court only dismissed
5
(stating that “[o]nly one final judgment shall be rendered in any cause except
where it is otherwise specially provided by law”); Conte v. Ditta, No. 14-02-
00482-CV, 2003 WL 21191296, at *5, n.7 (Tex. App.—Houston [14th Dist.] May
22, 2003, no pet.) (stating that separate documents executed at the same time for
the same purpose and in the course of the same transaction are to be construed
together) (mem. op.); Rodriguez v. Seider, No. 03-04-00454-CV, 2005 WL
723682, at *1 (Tex. App.—Austin Mar. 31, 2005, no pet.) (construing two orders
signed by the trial court on the same day in the same case as a single, final
judgment) (mem. op.); Port Distributing Corp. v. Fritz Chemical Co., 775 S.W.2d
669, 671 (Tex. App.—Dallas 1989, writ dism’d) (construing together as a single
judgment an order striking a pleading and a separate order signed on same day
granting summary judgment). Thus, the trial court concluded that, even if it were
not proper to strike the Plaintiffs’ pleadings, Shanks was entitled to have the claims
against him dismissed with prejudice based on his summary-judgment motion.5
See Tex. R. Civ. P. 301; Conte, 2003 WL 21191296, at *5, n.7; Rodriguez, 2005
WL 723682, at *1; Port Distributing Corp., 775 S.W.2d at 671.
B. Is this appeal moot?
After the trial court rendered its final judgment in the Ancillary Case, the
Core Case proceeded to trial. During trial in the Core Case, Henderson, Pitre, and
Willie nonsuited “their entire cause of action against all other [a]pplicants.” The
the Plaintiffs’ claims against him and therefore there is no final and appealable judgment. This
argument is incorrect because the trial court struck the Plaintiffs’ petition as to the claims against
both Shanks and Duhon.
5
We reject the Plaintiffs’ argument that the trial court’s striking of their petition deprived the
trial court of subject-matter jurisdiction to grant Shanks’s summary-judgment motion. This
court’s opinion in Granado v. Madsen, which the Plaintiffs have cited, is not on point because, in
that case, the trial court struck the plaintiff’s pleadings several months before it signed an order
purporting to grant summary judgment in favor of one of the defendants. See 729 S.W.2d 866,
870–71 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.).
6
trial court in the Core Case granted Shanks a directed verdict as to the validity of
the August Will and on the issue of Gibbons’s capacity to execute the August Will.
The trial court signed an order in the Core Case admitting the August Will to
probate, denying probate as to the May Will and the June Will, and granting letters
testamentary to Shanks as independent executor upon taking of the required oath.
The trial court signed a final order in the Core Case, and the appeal by Henderson,
Pitre, and Willie from that order is the subject of a separate appeal in this court.6
Shanks asserts that there is no longer any controversy regarding the August
Will and therefore the Plaintiffs’ claims in the Ancillary Case and in this appeal are
moot. For a justiciable controversy to exist, there must be a real and substantial
controversy involving a genuine conflict of tangible interests and not merely a
theoretical dispute. See Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.
1995). Henderson, Pitre, and Willie nonsuited their claims in the Core Case, and
we presume that by doing so, these parties nonsuited any claims in the Core Case
that Gibbons lacked testamentary capacity to execute the August Will, that there
was undue influence by Shanks, and that the May Will or June Will should be
admitted to probate. Nonetheless, the Plaintiffs did not nonsuit their tort claims
against Shanks and Duhon in the Ancillary Case. Instead, the Plaintiffs have
appealed from the trial court’s judgment in the Ancillary Case, and they argue on
appeal that this court should reverse the trial court’s judgment in the Ancillary
Case and remand the case to the trial court. The nonsuit in the Core Case and the
trial court’s orders in the Core Case have not mooted the controversies between the
Plaintiffs and Shanks and Duhon regarding the Plaintiffs’ tort claims. 7 The record
6
The appeal from that final order is pending in this court in Cause Number 14-13-00078-CV.
7
Shanks also argues that this appeal is moot because the Plaintiffs’ claims allegedly are barred
by judicial estoppel based on the unsworn “NOTICE OF NON-SUIT” filed in the Core Case and
based on the trial court’s orders in the Core Case. These actions occurred after the trial court had
7
reflects real and substantial controversies involving a genuine conflict of tangible
interests and not merely a theoretical dispute. This appeal has not become moot;
rather, it presents justiciable controversies between and among the parties that
actually will be determined by this court. 8 See Bonham State Bank, 907 S.W.2d at
467–69; Anambra State Community in Houston, Inc. v. Ulasi, 412 S.W.3d 786,
791–92 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
C. Were the Core Case and the Ancillary Case a single case or two
separate cases?
Shanks asserts that this court lacks jurisdiction over this appeal because the
orders from which the Plaintiffs seek to appeal did not dispose of the claims in the
Core Case and therefore there was no final and appealable judgment until the final
order in the Core Case. Shanks also asserts that this court lacks jurisdiction over
this appeal because the nonsuit of the Plaintiffs’ claims in the Core Case allegedly
vitiated the trial court’s prior order striking the Plaintiffs’ claims in the Ancillary
Case and therefore made this appeal moot. Both of these jurisdictional arguments
are based on the premise that the Core Case and the Ancillary Case are a single
rendered judgment in the Ancillary Case. Duhon does not appear to have been a party in the
Core Case. In the Ancillary Case, the trial court did not dismiss the Plaintiffs’ claims based upon
any assertion of the defense of judicial estoppel. Presuming, without deciding, that the
“NOTICE OF NON-SUIT” and the orders signed in the Core Case would entitle Shanks and
Duhon to a dismissal of the Plaintiffs’ tort claims based on the defense of judicial estoppel, the
applicability of this defense would not make this appeal or the Plaintiffs’ tort claims moot or
deprive this court of jurisdiction over this appeal.
8
Shanks also argues that this appeal is moot because the Plaintiffs’ claims allegedly are barred
by res judicata based upon the trial court’s orders in the Core Case. The trial court signed these
orders in the Core Case after it rendered judgment in the Ancillary Case. Duhon does not appear
to have been a party in the Core Case. In the Ancillary Case, the trial court did not dismiss the
Plaintiffs’ claims based upon any assertion of the defense of res judicata or claim preclusion.
Presuming, without deciding, that the orders signed in the Core Case would entitle Shanks and
Duhon to a dismissal of the Plaintiffs’ tort claims based on the defense of res judicata or claim
preclusion, the applicability of this defense would not make this appeal or the Plaintiffs’ tort
claims moot or deprive this court of jurisdiction over this appeal.
8
case rather than two separate cases.
The Rules of the Probate Courts of Harris County provide as follows:
• All new estate administrations, guardianships, and trust matters that are filed
in the Probate Courts of Harris County shall be assigned a docket number
sequentially. See Harris County Prob. R. 2.2.
• All matters relating to an estate or guardianship administration shall have
only the sequential docket number. See Harris County Prob. R. 2.4. All
ancillary matters shall be assigned the original docket number plus a suffix
commencing with 4. See id. For example, the Estate of Mary Doe, Deceased,
shall be assigned number 123,456. An ancillary matter shall be assigned
cause number 123,456-401. See id. The Clerk shall maintain separate files
for each sub-file number. See id.• Those matters that are principally concerned with the administration of the
estate are “core matters” and should be filed under the main cause number.
See Harris County Prob. R. 2.5.
• Any of the proceedings that is a “core matter” may be severed as an
ancillary proceeding at the probate court’s discretion. See id.• Contested matters that bear no direct relationship to the administration of the
estate and that would have the possibility of becoming an independently-
tried lawsuit (each potentially with its own docket control and discovery
schedules) are ancillary matters that belong in a different file with an
ancillary or related case designation. See Harris County Prob. R. 2.6.
Under these rules, ancillary matters have a separate file and are given a
different cause number from the core matter to which they relate. See Harris
County Prob. R. 2.2, 2.4. The rules allow a probate court to sever a proceeding
that is a core matter into an ancillary proceeding. See Harris County Prob. R. 2.5.
The rules refer to ancillary matters as contested matters that have the possibility of
becoming an independently-tried lawsuit. See Harris County Prob. R. 2.6. The
parties have not cited, and research has not revealed, any Texas statute or rule with
which these rules are inconsistent or any case interpreting these rules. Under the
unambiguous language of these rules, we conclude that, though an ancillary matter
9
is related to a core matter, a case filed as an ancillary matter with a cause number
for an ancillary matter is a separate and independent case from the core matter to
which it relates. Absent some judicial action to consolidate the ancillary matter
with the core matter, the two cases are separate. The record does not reflect that
the trial court consolidated the Ancillary Case and the Core Case. All relevant
actions in the Core Case were taken under the cause number for that case, and all
relevant actions in the Ancillary Case were taken under the cause number for that
case. Therefore, the Ancillary Case and the Core Case are two separate cases.
Because the claims in the Core Case were pending in a separate case, the
trial court’s failure to adjudicate those claims in its judgment in the Ancillary Case
did not make that judgment interlocutory or not subject to appeal. Likewise, the
nonsuit of the Plaintiffs’ claims in the Core Case did not nonsuit any claims in the
Ancillary Case or vitiate the trial court’s order striking the Plaintiffs’ claims in the
Ancillary Case. Concluding that this court has jurisdiction over this appeal, we
reject the jurisdictional challenges and turn to the merits.
D. Did the trial court err in striking the Plaintiffs’ Original Petition?
In their first issue, the Plaintiffs assert that the trial court erred in striking
their Original Petition. We review this ruling under an abuse-of-discretion
standard of review. See In re K.A.C.O., No. 14-07-00311-CV, 2009 WL 508295,
at *6–9 (Tex. App.—Houston [14th Dist.] Mar. 3, 2009, no pet.) (mem. op.).
Duhon did not move to strike the Plaintiffs’ Original Petition. Shanks filed a two-
page motion to strike this petition in the cause number for the Ancillary Case. In
this motion, Shanks asserted that “this will contest” began in December 2010,
when Willie filed an application to probate the June Will. Shanks referred in the
motion to the docket control order and the Pleadings Deadline issued in the Core
Case. Shanks noted that the Plaintiffs filed their tort claims against Shanks and
10
Duhon after the Pleadings Deadline had passed. Shanks asserted that the Plaintiffs
did not seek leave of court and that their Original Petition was untimely as a matter
of law and should be stricken.
The only authority Shanks cited in his motion to strike was Texas Rule of
Civil Procedure 63, which governs amendments and responsive pleadings. See
Tex. R. Civ. P. 63. This rule provides in its entirety as follows:
Parties may amend their pleadings, respond to pleadings on file of
other parties, file suggestions of death and make representative
parties, and file such other pleas as they may desire by filing such
pleas with the clerk at such time as not to operate as a surprise to the
opposite party; provided, that any pleadings, responses or pleas
offered for filing within seven days of the date of trial or thereafter, or
after such time as may be ordered by the judge under Rule 166, shall
be filed only after leave of the judge is obtained, which leave shall be
granted by the judge unless there is a showing that such filing will
operate as a surprise to the opposite party.
Tex. R. Civ. P. 63. We review the trial court’s interpretation of Rule 63 de novo.
See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655B56 (Tex. 1989); Thomas
v. Olympus/Nelson Property Management, 148 S.W.3d 395, 399 (Tex. App.—
Houston [14th Dist.] 2004, no pet.). In construing Rule 63, our objective is to
determine and give effect to the intent of the rule. See Nat’l Liab. & Fire Ins. Co.
v. Allen, 15 S.W.3d 525, 527 (Tex. 2000); Thomas, 148 S.W.3d at 399. If possible,
we must ascertain that intent from the rule’s language and not look to extraneous
matters for an intent the rule does not state. See Nat’l Liab. & Fire Ins. Co., 15
S.W.3d at 527; Thomas, 148 S.W.3d at 399. If the meaning of the rule’s language
is unambiguous, we adopt the interpretation supported by the plain meaning of the
rule’s words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.
1997); Thomas, 148 S.W.3d at 399. We must not engage in forced or strained
construction; instead, we must yield to the plain sense of the words used in Rule
11
63. St. Luke’s Episcopal Hosp., 952 S.W.2d at 505; Thomas, 148 S.W.3d at 399.
The filing of Plaintiffs’ Original Petition initiated suit in the Ancillary Case
and was the first pleading filed in that case. The Plaintiffs’ Original Petition was
not an amended pleading, a supplemental pleading, or a pleading in response to
another party’s pleading. The Plaintiffs’ Original Petition was not a suggestion of
death, nor did it make representative parties. We conclude that, under Rule 63’s
unambiguous language, the rule does not apply to the Plaintiffs’ Original Petition.
See Tex. R. Civ. P. 63. To the extent the trial court concluded that Rule 63 applied
to the Plaintiffs’ Original Petition, the trial court abused its discretion. See id.; In
re K.A.C.O., 2009 WL 508295, at *6–9.
The Plaintiffs filed their Original Petition after the Pleadings Deadline in the
trial court’s docket control order under Texas Rule of Civil Procedure Rule 166.
The only argument that Shanks advanced in his motion to strike was that the
Original Petition in the Ancillary Case should be stricken because it was filed
without leave of court after the Pleadings Deadline under the docket control order
in the Core Case. A premise of Shanks’s argument apparently was that the Core
Case and the Ancillary Case were a single case and therefore the Plaintiffs’ filing
of the Original Petition without leave of court violated the docket control order in
the Core Case. 9 But, as discussed in the previous section, the Ancillary Case and
the Core Case are two separate cases. The Plaintiffs did not file the Original
Petition in violation of any docket control order in the Ancillary Case. Because the
9
On appeal, Shanks also asserts that the Plaintiffs violated the docket control order by asserting
claims against Duhon and thus allegedly joining Duhon as a party after the deadline for joinder
of parties in the docket control order in the Core Case. Shanks did not raise this argument in the
trial court, and this argument does not provide a basis for striking the Plaintiffs’ Original Petition
under an analysis analogous to the analysis of the argument regarding the deadline in this order
for amending or supplementing pleadings.
12
Ancillary Case is a separate case, the Plaintiffs’ Original Petition was not an
amended, supplemental, or responsive pleading; rather, it was an original petition
not subject to Rule 63.
Shanks asserts that the Plaintiffs have not demonstrated that the trial court
abused its discretion in determining that the Plaintiffs’ claims were compulsory
counterclaims required to be asserted in the Core Case. But, the record does not
reflect that the trial court made such a determination. Shanks did not assert that the
trial court should strike the Original Petition on this ground, and, in its judgment,
the trial court granted Shanks’s motion to strike without specifying the reason for
granting the motion. The trial court did not determine that the claims asserted in
the Plaintiffs’ Original Petition were compulsory counterclaims required to be
asserted in the Core Case, nor did the trial court strike with prejudice the Plaintiffs’
Original Petition on the ground that it contained compulsory counterclaims that the
Plaintiffs were required to assert in the Core Case. 10 This court must affirm the
trial court’s striking of the Plaintiffs’ Original Petition if it was proper under any
legal theory supported by the record. See Bilnoski v. Pizza Inn, Inc., 858 S.W.2d
55, 58 (Tex. App.—Houston [14th Dist.] 1993, no writ). Shanks, however, has not
cited any cases holding that the compulsory-counterclaim rule is a proper basis for
a trial court to strike a claimant’s pleading. The compulsory-counterclaim rule is
an affirmative defense on the merits to the claims to which it applies in the
subsequent action. See Commint Technical Servs., Inc. v. Quickel, 314 S.W.3d
646, 651–53 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Though a court
10
Duhon does not appear to have been a party in the Core Case. See Tex. R. Civ. P. 97(a)
(stating that “[a] pleading shall state as a counterclaim any claim within the jurisdiction of the
court, not the subject of a pending action, which at the time of filing the pleading the pleader has
against any opposing party, if it arises out of the transaction or occurrence that is the subject
matter of the opposing party’s claim and does not require for its adjudication the presence of
third parties of whom the court cannot acquire jurisdiction”) (emphasis added).
13
may strike a pleading under Rule 63 or as a sanction, this court has held that the
alleged lack of merit of claims asserted in a pleading does not provide a proper
basis for striking that pleading. See Rodriguez v. U.S. Security Assocs., 162
S.W.3d 868, 871–75 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Presuming,
without deciding, that the compulsory-counterclaim rule provided Shanks a
defense to the claims asserted in the Plaintiffs’ Original Petition, this defense might
provide a potential basis for summary judgment, but it would not provide a proper
basis for the trial court to strike the Original Petition. See Commint Technical
Servs., Inc., 314 S.W.3d at 651–53; Rodriguez, 162 S.W.3d at 871–75.
Shanks asserts that the Plaintiffs have not shown that the trial court abused
its discretion in considering the Plaintiffs’ claims to be a core matter that should
have been filed in the Core Case. The record, however, does not reflect that the
trial court decided that the Plaintiffs’ claims were a core matter that should have
been filed in the Core Case. Shanks did not assert that the trial court should strike
the Original Petition on this ground, and, in its judgment, the trial court granted
Shanks’s motion to strike without specifying the reason for doing so. Presuming,
without deciding, that the claims asserted in the Plaintiffs’ Original Petition were
compulsory counterclaims that the Plaintiffs were required to assert in the Core
Case, that would not mean that these claims actually were asserted in the Core
Case.11 The trial court did not conclude that the Plaintiffs’ Original Petition was
improperly filed as an ancillary matter. The Ancillary Case was separate from the
Core Case, and the trial court did not consolidate the Ancillary Case with the Core
Case. On the contrary, in its two orders that constitute the final judgment in the
Ancillary Case, the trial court struck the Original Petition and granted summary
judgment in favor of Shanks in the Ancillary Case. The trial court did not
11
As previously noted, Duhon does not appear to have been a party in the Core Case.
14
conclude that the Plaintiffs’ claims were a core matter that should have been filed
in the Core Case. The record does not support Shanks’s theory that the trial court
considered the Plaintiffs’ claims to be a core matter that should have been filed in
the Core Case.
Rule 63 did not apply to the Plaintiffs’ Original Petition. Leave of court was
not required under that rule before the Plaintiffs could file their Original Petition in
the Ancillary Case, and Rule 63 does not provide a proper basis for the trial court’s
striking of that pleading. The record does not reflect that the filing of the
Plaintiffs’ Original Petition violated the docket control order in the Core Case or
any other order of the trial court. Nor does the record show that the trial court
struck the Plaintiffs’ Original Petition as a sanction. The trial court’s striking of
the Plaintiffs’ Original Petition was not proper under any legal theory supported by
the record. See Bilnoski, 858 S.W.2d at 58. Therefore, we conclude that the trial
court erred to the extent it struck the Plaintiffs’ Original Petition. See In re
K.A.C.O., 2009 WL 508295, at *6–9 (holding trial court erred in striking
pleading); Seale v. Texas Dept. of Family and Protective Servs., No. 01-10-00440-
CV, 2011 WL 765886, at *3–5 (Tex. App.—Houston [1st Dist.] Mar. 3, 2011, no
pet.) (holding trial court erred in striking intervention petition) (mem. op.).
Accordingly, we sustain the Plaintiffs’ first issue and reverse the part of the trial
court’s judgment in which it strikes the Plaintiffs’ Original Petition with prejudice.
E. Did the trial court err in granting Shanks’s motion for a traditional
summary judgment?
In certain formal relationships, such as that between an attorney and a client,
a fiduciary duty arises as a matter of law. See Meyer v. Cathey, 167 S.W.3d 327,
330–31 (Tex. 2005). Courts sometimes call such a duty a “formal fiduciary duty.”
See Insurance Company of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998).
15
An informal fiduciary duty may arise from certain relationships involving a high
degree of trust and confidence that do not give rise to a formal fiduciary duty. See
Meyer, 167 S.W.3d at 330–31. But, Texas courts do not allow such relationships
to be found lightly. See id. Not every relationship involving a high degree of trust
and confidence rises to the stature of a fiduciary relationship, and subjective trust is
not sufficient to transform an arms-length transaction into a fiduciary relationship.
See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 176–77 (Tex. 1997).
Shanks asserted as a ground for a traditional summary judgment that Shanks
did not owe any of the Plaintiffs a fiduciary duty. And, the uncontroverted
summary-judgment evidence proved as a matter of law that Shanks did not owe
any of the Plaintiffs a fiduciary duty, either based on a formal fiduciary duty or on
an informal fiduciary duty. See Mims-Brown v. Brown, 428 S.W.3d 366, 375–76
(Tex. App.—Dallas 2014, no pet.). In the trial court and on appeal, the Plaintiffs’
only argument as to why Shanks owed them a fiduciary duty has been that Shanks
acted as an attorney-in-fact for Gibbons under a statutory durable power of
attorney. There is no evidence that Shanks acted as an attorney-in-fact for any of
the Plaintiffs. We conclude that, even if Shanks owed Gibbons a fiduciary duty
based on his acting as attorney-in-fact for Gibbons under such a power of attorney,
as a matter of law, that relationship does not mean that Shanks owed a fiduciary
duty to any of the Plaintiffs. See Belt v. Oppenheimer, Blend, Harrison & Tate,
192 S.W.3d 780, 782–84 (Tex. 2006) (noting the rule in Texas that a testator’s
attorney does not owe a duty of care to non-client beneficiaries under a will drafted
by the attorney); Mims-Brown, 428 S.W.3d at 375–76 (holding that the summary-
judgment evidence proved as a matter of law that the defendant did not owe a
fiduciary duty at the time of her allegedly actionable conduct, either based on a
formal fiduciary duty or on an informal fiduciary duty); Thompson v. Vinson &
16
Elkins, 859 S.W.2d 617, 623–24 (Tex. App.—Houston [1st Dist.] 1993, writ
denied) (holding that, as a matter of law, law firm representing trustee did not owe
fiduciary duty to beneficiaries of the trust). Because the summary-judgment
evidence proved as a matter of law that Shanks did not owe any of the Plaintiffs a
fiduciary duty, the trial court did not err in granting a traditional summary
judgment as to the Plaintiffs’ claims against Shanks for breach of fiduciary duty.
The Plaintiffs have not briefed any argument challenging the trial court’s
traditional summary judgment as to the Plaintiffs’ claims against Shanks for
tortious interference with inheritance rights. The Plaintiffs have not provided any
argument, analysis, or citations showing how the trial court erred in granting
Shanks’s motion for a traditional summary judgment as to these claims. Even
under a liberal interpretation of the Plaintiffs’ appellate briefing, we cannot
conclude that they have adequately briefed these issues. See Fish v. Marsters, 14-
06-00129-CV, 2007 WL 1438555, at *5 (Tex. App.—Houston [14th Dist.] May
17, 2007, pet. denied) (mem. op.); San Saba Energy, L.P. v. Crawford, 171 S.W.3d
323, 337 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Accordingly, we
cannot conclude that the trial court erred in granting a traditional summary
judgment as to the Plaintiffs’ claims against Shanks for tortious interference with
inheritance rights. 12
The trial court did not err in granting Shanks’s motion for a traditional
summary judgment as to the Plaintiffs’ claims against him. Accordingly, we
overrule the Plaintiffs’ third issue.
12
Even if there had not been briefing waiver, we still would conclude that the trial court did not
err in granting a traditional summary judgment as to the Plaintiffs’ claims against Shanks for
tortious interference with inheritance rights.
17
III. CONCLUSION
Rule 63 did not apply to the Plaintiffs’ Original Petition, and that rule does
not provide a proper basis for the trial court’s striking of the petition. The record
does not reflect that the filing of the Plaintiffs’ Original Petition violated the docket
control order in the Core Case or any other order of the trial court. Nor does the
record show that the trial court struck the Plaintiffs’ Original Petition as a sanction.
The trial court’s striking of the Plaintiffs’ Original Petition was not proper under
any legal theory supported by the record. The trial court erred to the extent it
struck the Plaintiffs’ Original Petition. In its judgment, the trial court, in the
alternative, dismissed with prejudice the Plaintiffs’ claims against Shanks based on
Shanks’s motion for a traditional summary judgment. The trial court did not err in
granting this motion. Therefore, we affirm the trial court’s judgment to the extent
the trial court granted Shanks’s motion for summary judgment and dismissed with
prejudice the Plaintiffs’ claims against Shanks. 13 To the extent the trial court struck
the Plaintiffs’ Original Petition with prejudice, we reverse the trial court’s
judgment. We sever the Plaintiffs’ claims against Duhon and remand those claims
to the trial court for further proceedings.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Jamison and Wise.
13
We need not and do not address the Plaintiffs’ second and fourth issues.
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